28 January 2016

Judicial Elections Back in the News

Two recent news items caught my attention as they show the difficulty states have with keeping their elected judges independent. In an en banc decision the U.S. Court of Appeals for the Ninth Circuit upheld an Arizona law that regulates the fundraising activities of judges. According to the Arizona Courthouse News Service:
Saying free-speech rights cannot outweigh the need to preserve judicial integrity, the en banc Ninth Circuit on Wednesday upheld an Arizona law banning judges from soliciting donations or stumping for colleagues. The 21-page lead opinion affirms five provisions in Arizona judicial code, which restrict judicial candidates from in-person solicitation or endorsing and campaigning for other candidates publicly, under the First Amendment.
The goal here is to keep judges out of the normal give and take political campaigning process in order to keep them independent.

In Wisconsin court watchers are concerned that the upcoming Wisconsin Supreme Court race will be overly partisan. This illustrates yet another difficulty with judicial elections. Can judges be said to be truly independent when they run on a partisan platform? 

18 January 2016

Lifetime Appointments

The Washington Post's blog "The Fix" recently had a post informing its readers that the average age of the U.S. Supreme is nearing its record high. The post has some interesting tidbits:
  • The average when Justices retire is around 78
  • Three Justices are older than 78
  • The average age of the Court at the moment is 69
This is good opportunity to remind students that judges in the U.S. federal court system are appointed for life, whereas judges in England have a mandatory retirement age. The majority of states in the United States also require their judges to retire after reaching a certain age. 

Making Courts More Transparent

Whether high court hearings should be televised has been an ongoing topic on this blog (see here, here and here). In the United States, at least at the federal level, the Supreme Court has rejected calls to televise its hearings, although the audio version of the hearings are made available after the fact. In the UK, the Supreme Court has taken transparency one step further by releasing video of its hearings after the fact. And apparently these videocasts are becoming increasingly popular. To get a better understanding of the debate over cameras in the courtroom, I suggest taking a quick glance at the Debatepedia page on the topic.

14 January 2016

Natural Born Citizen and the Presidency

The natural born citizen question is currently front and center in the Republican primary contest for President of the United States. Students in my U.S. Constitutional Law course will know that a requirement to be President is being a "natural born citizen" of the United States. As I said in class, clearly this disqualifies someone who became a naturalized American citizen, for instance Arnold Schwarzenegger. But what about an American born overseas to American parents? Are they natural born citizen? Or must the person be born in the United States? The issues is being discussed (again) in the United States because Texas Senator Ted Cruz, who is running for President, was born in Canada to an American mother and Cuban father. He has his American citizenship through his mother, of course, but does being born in Canada disqualify him from running for the Presidency? Donald Trump thinks so. So do some legal scholars. The National Constitution Center's blog "Constitution Daily" has more.

13 January 2016

The Limits to Advertising

My favorite legal ad in Detroit. These signs are everywhere there.
Anyone who has been to the United States and driven on its highways will know that lawyers have the right to advertise their services. I am always amazed at how many of these signs I see along Interstate 94 in Detroit on my way to and from the Detroit airport. In a 5-4 decision the the U.S. Supreme Court held in Bates v. State Bar of Arizona that legal advertising was protected by the First Amendment and presented no harm to the practice of law in general. But there are limits as a few lawyers in Texas apparently forgot. The crime of barraty in Texas bars lawyers from soliciting individual clients, otherwise know as ambulance chasing. This, according to the Supreme Court, is perfectly acceptable and different from an advertisement which targets the public in general, not individuals.  

11 January 2016

Behind the Scenes at the U.S. Supreme Court

The NPR Politics Podcast has an interesting interview with U.S. Supreme Court Justice Stephen Breyer. In the podcast Breyer takes us behind the scenes at the Supreme Court. It's well worth the listen.

07 January 2016

Constitutional Standing

The Blog Religion Clause reports that a lawsuit challenging Montana's law prohibiting polygamy is on the verge of being dismissed for lack of standing. Students in my U.S. Constitutional Law course might want to take a quick look at this post and see whether they understand why this case might be dismissed. If you understand the reason, then you understand constitutional standing.

06 January 2016

The Meaning of Religious Freedom

Students in my U.S. Constitutional Law course were recently introduced to the confusing and sometimes contradicting Supreme Court jurisprudence related to religious liberty. This confusion is primarily the result of a struggle that has been taking place among the Justices on the Supreme Court for several decades over the meaning of these words:
Congress shall make law respecting the establishment of religion or free exercise thereof.
Some see the words "respecting the establishment of religion" as a command for strict church/state separation, while others see it simply as a bar on the federal government from creating a national church or religion. The gulf between these two positions is enormous and multiple views landing somewhere in between these two poles have been expressed by Justices, making this perhaps the most confusing area of American constitutional law.

Justice Antonin Scalia is perhaps the most outspoken advocate on the court of a very limited reading of the so-called establishment clause. Speaking at an event in Louisiana recently, the Justice said:
the idea that government must be neutral between religion and unbelief is not grounded in the country’s constitutional traditions and that God has been good to the United States because Americans honor him.
Scalia went on to note that the government should not favor one religion over another, but there is nothing in the American constitutional tradition that demands equal treatment between religion and non-religion.

05 January 2016

Failing to Answer as a Strategy

A quick review of how a case is filed in common law countries. The plaintiff begins by filing a pleading called a complaint (or claim in England), which states the facts of the case (from the plaintiff's perspective) and the legal claims. The next step calls for the defendant to file an answer to the complaint. In class we learned that failure to file this answer will usually result in the plaintiff winning the case. In the United States this is often referred to as a default judgment or in England a judgment in default. Recently the Chelsea Football Club was sued by one of its employees. After receiving the claim, Chelsea opted not to file an answer, thus resulting in them losing the case. An amateur mistake made by the football club's high paid legal advocates? Not all. To learn why check out this post at Legal Cheek.

15 December 2015

Langauge Unbecoming of a Judge?

Readers of recent Supreme Court opinions in both the United Kingdom and United States might be surprised by some of the language used by Justices to describe the arguments set forth by their fellow Justices. In England, it has apparently become so bad that the President of the UK Supreme Court has now publicly called for his fellow Justices to show restraint when writing their opinions. As the Telegraph reports:
The president of the Supreme Court has chastised judges, saying that while it is "fun" to throw insults at each other they are damaging the reputation of the court. Lord Neuberger of Abbotsbury urged lawmakers to stop their “abuse” and “hyperbolic criticism” of one another in their judgements because they risk undermining the authority of the judicial process.
This act of "throwing insults" is nothing new at the U.S. Supreme Court. Justice Antonin Scalia has been doing it for almost thirty years calling the views of his fellow Justices "silly" "absurd" and "feeble."

14 December 2015

Can Muslims Be Banned From Entering the United States?

Donald Trump is no stranger to controversy. In fact, he craves it. His most recently controversial statement, however, has raised an interesting constitutional question: Would it be constitutional to exclude all Muslims from entering the United States? (for a primer on this issue in German see "Trump für komplettes Muslim-Einreiseverbot in die USA"). Interestingly, there is a split of opinion among American academics regarding this question, and one of the reasons is a case that was discussed here early this month. For a taste of the some of the conflicting views regarding this question see here, here and here.